929 F. 2d 702 - Stephenson v. Black

E.D.Tenn.

APPEAL DISMISSED.

Before MILBURN and BOGGS, Circuit Judges; and GILMORE, District Judge.*

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the documents before the court indicates that by order entered February 14, 1990, the district court denied appointment of counsel, dismissed Haston and directed service of the complaint upon defendants Black, Bear, Pack, Garrett and Moore. The district court docket sheet indicates that such service was made upon those defendants. Plaintiff sought to add Haston as a defendant but his motion was denied. A motion to amend the consolidated complaints into a class action was denied by order filed February 5, 1991. Pack, Garrett and Moore were dismissed as defendants on February 5, 1991. Plaintiff filed a notice of appeal on February 20, 1991, seeking review of the orders dismissing Haston, Pack, Garrett and Moore; the order denying class certification; and the order denying appointment of counsel.

This court lacks jurisdiction in this appeal. Absent Fed.R.Civ.P. 54(b) certification, an order disposing of fewer than all the claims or parties involved in the action is not appealable. Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 742-45 (1976); Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 59-60 (6th Cir.1986). No Rule 54(b) certification was made in the instant case. The final decision of the district court has not been entered during the pendency of this appeal; therefore, this court lacks jurisdiction. See Gillis v. United States Dep't of HHS, 759 F.2d 565, 569 (6th Cir.1985). An order denying class certification generally is not appealable. Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480 (1978); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69 (1978). In addition, an order denying appointment of counsel is not appealable. Hodges v. Department of Corrections, 895 F.2d 1360, 1361-62 (11th Cir.1990) (per curiam); Holt v. Ford, 862 F.2d 850, 851 (11th Cir.1989) (en banc); Henry v. City of Detroit Manpower Dep't, 763 F.2d 757, 764 (6th Cir.) (en banc), cert. denied, 474 U.S. 1036 (1985).

Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.